Friday, August 6, 2010

Is Open Government absolute?

A new normal has emerged in public policy thinking over the last 18 months: the idea that the reality of Open Government is a “good thing” and that Open Data is an important step in turning the policy of open government an operational reality. The latest event was the Declaration of Open Government last month by the Australian government. So are there boundaries to Open Government? If the mantra is "open by default", what are legitimate reasons for not following the default?

Cultural change involved in implementing Open Government is huge. Despite the fact that we have had the Official Information Act in place in New Zealand for almost 30 years, there are still questions over whether government officials are comfortable operating in accordance with the legislation. The widespread availability of Internet technology removes significant operational barriers from releasing official information, and has exposed more deep-seated systemic resistance. Legislation is a blunt instrument to effect behavioural change.

Last week, the NZ government, led by the Department of Conservation, convened a group of invited participants to brainstorm what data sets should be prioritised across government for release under an open data program. A good idea, I thought, but others did not.

“.. I am concerned about the process here. It's quite legitimate for private individuals to run invite-only events (Foo, for example), and for private companies to do so (Microsoft Open Govt), but IMHO it's a different ballgame when government is involved, especially (ironically) when the topic is open govt or open govt data. .... We need to scale past this invite-only, pussy-footing to larger, public, open processes as fast as possible."

This got me to thinking about the fundamentals of Open Government. Technology has made it possible for every interaction of a government official or politician to be published online. Should every step in the development of ideas take place "on the record" or is there a place for deliberative privacy?

Beth Noveck, Deputy CIO and spearhead of the Obama campaign for open and transparent government, spoke about this when questioned (at 1:20:00) on whether legislating for transparency of meetings simply moved discussions from 'meetings' to the lunch table. (There was a secondary question about whether secrecy is used as an excuse for not making data open; in this post, I am focused on information that is not subject to privacy or national security constraints).

If everything is totally open, people either grandstand for the cameras or are reluctant to join a conversation for fear of appearing stupid. Deals are not made in front of TV cameras, and locking politicians into early public positions can have unforseen consequences.

The White House publishes a list of visitors, and meetings of senior government officials are a matter of public record "so we know there are no secret energy meetings going on, but they are in fact happening out in the open". The problem of institutional reform is hard, and the current approach is to start with lobbying – “ensuring that when we talk with lobbyists we are much more open than when we are going to lunch with our colleagues”.

Beth’s view is also that there are practical constraints on full transparency - "if we had to record every conversation, we would spend so much time being open, there would not be enough time to get the job done". However, this may be a temporary constraint - it is not hard to imagine a future where everything is able to be recorded without any active effort required of participants.

Just because everything can be made part of the public record, does not mean it should be. In the new world of Open Government, we need to understand the legitimacy of government having discussions in private or by invitation only. The questions are:

the criteria for choosing who is involved in early stage discussion

the disclosure requirements about the existence and content of early stage discussions

at what point should those discussions be opened up to a wider community.

I personally support deliberative privacy with transparency of participation - publication of who is part of the early stage discussions. The results should be disclosed early enough that positions are not fully formed (and we find ourselves in faux consultation), while allowing enough time to develop ideas so that the subsequent dialogue is effective. In many ways, public officials are caught either way: when ideas are first floated they are criticised for being short on detail, and if they present detailed proposals they are criticised for not consulting widely enough.

Back to the government event last week. I stand by my view that the event was a good idea. People outside government do not always understand the pressures and cultural expectations that constrain what you can do within government. For this event, the organisers made efforts to cast the net wide for community involvement, and published the outcome of the discussions within two working days. As far as I am aware, no-one was excluded from the event, and it is hard to see what more the organisers could have done to operate openly.

As Public Strategist has observed : The government is an elephant - It tries to dance, but finds it hard, and the smaller animals around it can get hurt. The solution may be for the elephant to stand stock still, to do nothing for fear of treading on something more nimble, but more easily hurt. Or it may be to learn to tread more carefully, to place its feet carefully, but to keep moving nevertheless. Or it may be to charge ahead regardless and let others survive as best they can.

When faced with Open Government, the natural response of the elephant is the first option, so we should support and encourage government officials to choose the second option. Encourage them to interact with people and understand how to operate within a community, and join in a rolling conversation in different forums without constraints on who should be involved in individual events. The more conversations there are about Open Government, the more we will make progress. Anyone who champions the cause should be praised and encouraged.

The US government chose the third option, and they did this because of the unequivocal leadership from the top - the very first thing President Obama did, on his first day in office, was to sign the executive memorandum on transparency and open government. With that level of leadership, the elephant can charge ahead. Without that leadership, the best we can expect from our public servants is that they learn to move forward, and keep moving. Our job is to encourage those that are moving and harangue those that are not.

So praise to the State Services Commission who today announced the formal adoption by Cabinet of the NZ Government Open Access and Licensing framework (NZGOAL). This provides guidance for State Services agencies to follow when releasing copyright works and non-copyright material for re-use by third parties, standardises the licensing of government copyright works for re-use using Creative Commons licences, and recommends the use of ‘no-known rights’ statements for non-copyright material.

To continue the conversation: OpenLabourNZ is running a public one-day event at the end of August. I am looking forward to the presence of Andrew Rasiej, who will be joining the event by video link. I look forward to further discussion of these issues, which are at the heart of Open Government.